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2011
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[2011] ZAGPPHC 201
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Jorpe Turnkey Projects CC v HCI Khusela Coal (Pty) Ltd (Sapire AJ) [2011] ZAGPPHC 201 (14 October 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
number: 576992/10
Date:
14 October 2011
JORPE
TURNKEY PROJECTS
CC
..............................................................................
Applicant
V
HCI
KHUSELA COAL (PTY)
LIMITED
......................................................................
Respondent
Application
for compulsory winding up
Coram Sapire AJ
JUDGMENT
The
Applicant is a close corporation, which undertakes construction work.
The
Respondent is a coal mining company, a wholly owned subsidiary of a
company listed on the Johannesburg Stock Exchange.
The
Respondent employed the Respondent to perform construction works in
furtherance of its Palesa and Mbali projects. Applicant
completed the
work that it had undertaken to do. The Applicant maintains that
Respondent still owes R38 391734.6, for its services.
This amount is
the difference between the total of R192 341835.42 which is the
amount Applicant claims should have been paid and,
R153 950 100.73
which was in fact paid.
The Respondent does not
agree. The Respondent, although at one time claimed to have overpaid
the Applicant by some six million Rand,
on a revised calculation by
its expert, admitted indebtedness in an amount of R 1 155 095,94.
Payment of this amount was tendered
after commencement of these
proceedings in Respondent's replying affidavit. The amount has since
been paid and accepted. This leaves
the balance, a substantial amount
in dispute.
The
present proceedings are clearly employed by the Applicant to recover
what it contends is owning to it. The application is brought
correctly, as far as the applicable legislation is concerned, in
terms of the old Companies Act, the provisions of which presently
continue to govern, winding up and liquidation proceedings.
On
21 May 2010, the Applicant delivered notices in terms Section 345 of
the Act. The amounts therein demanded, totalling R3 008
734, 00,
although significant and substantial, are but a fraction of what
Applicant alleges is owing to it. Nothing however turns
on this.
The
respondent did not, to use the words of the section, pay the amounts
claimed nor did it secure or compound for it to the reasonable
satisfaction of the creditor. The consequence thereof, but for the
fact that it responded by denying liability, would have been
that the
Respondent would have been deemed to have been unable to pay its
debts. In view of the denial of liability this presumption
does not
operate.
The
Applicant relies on the alleged indebtedness by the respondent to
qualify the Applicant as a creditor of the Respondent, to
apply for
the winding up of the respondent.
The
crucial issue to be resolved therefore is whether the Respondent is
indebted to the Applicant or not.
The
winding up procedure is generally not amenable to the resolution of
such disputes. The applicant when embarking on this application
should have been aware of the dispute, indeed, the Applicant was
demonstrably so aware, for it attached to the founding papers
an
opinion of Kingsbourne Quantity Surveyors. With reference thereto the
applicant maintained, "having regard to the expertise
of Messers
Kingsbourne as set out in their report and the mode of calculation,
there can no longer be any bone fide or reasonable
dispute with
regard to the amount due, owing, and payable to the applicant"
The
Respondent has countered this opinion with one of its own expert
which as I have previously observed limited the Respondent's
indebtedness to an amount which has since been paid. Whatever
criticism there may be of the expert's opinion it cannot be said
that
the opinion has to be rejected or disregarded until tested under
cross examination and the expert's explanation considered.
For
present purposes, there are two conflicting opinions and the
Respondent cannot be said to be prevaricating in acting in reliance
of one of them. There is a genuine dispute, on a crucial issue which
cannot be resolved on the affidavits.
Applicant's
counsel urged me, should this be my finding, to refer the matter for
the hearing of oral evidence, on this issue. I
reject this option for
clearly a trial action should have been instituted by the Applicant.
The
Respondent although clearly insolvent as appears from its financial
statements, is the subsidiary of a company with a quotation
on the
Johannesburg Stock Exchange, which has in writing undertaken to
support the Respondent. This in effect means that the Respondent
notwithstanding its insolvent position is not unable to pay its
debts.
Should
the Applicant therefore succeed in establishing that the Respondent
is indebted to it in the amount it alleges or at all,
there is every
prospect that the respondent's obligations in regard thereto will be
discharged.
The
application is dismissed with costs
ATTORNEYS
FOR THE APPLICANT FRANS RABIE ATTORNEYS C/O VAN DER MERWE ATTORNEYS
ATTORNEYS
FOR THE RESPONDENT MESSRS. EDWARD NATHAN SONNENBERG C/O ADAMS &
ADAMS